Royal Bank Of Scotland v Nwosuagwu -Ibe

A trained and senior employee may be summarily dismissed for serious procedural breaches without a specific prior warning where the employer was reasonably entitled to regard the breaches as gross misconduct.

In victimisation claims under the Race Relations Act 1976, the statutory reverse burden in section 54A does not apply. The tribunal must identify the relevant treatment, compare it with actual or hypothetical treatment of a person who has not done a protected act, consider all realistic non-discriminatory explanations, and decide whether an inference is proper. Unreasonable conduct alone is insufficient.

An Employment Tribunal has no jurisdiction to determine an unpleaded discriminatory act unless the claim has been amended.

The claimant, a senior branch manager, was dismissed for failing to follow the large-payment procedure and for authorising loans without the required authority. The London Central Employment Tribunal dismissed her unfair-dismissal claim and two victimisation complaints. It upheld a third victimisation complaint concerning the inclusion of a Bronze Alert incident in the disciplinary process.

The claimant appealed against the dismissal of her unfair-dismissal and victimisation claims. The bank cross-appealed against the finding concerning the Bronze Alert. The central issues were whether the dismissal was within the range of reasonable responses, whether the tribunal had correctly addressed victimisation in initiating disciplinary action, and whether it could decide an unpleaded Bronze Alert complaint.

1. The claimant’s unfair-dismissal appeal was dismissed. The Employment Tribunal was entitled to find that the claimant’s failures concerning the large-payment procedure and loan authorisation were gross misconduct. She was a senior and adequately trained manager who knew, or should have known, the seriousness of the requirements. In those circumstances, a specific warning that dismissal could follow was unnecessary. The tribunal was entitled to hold that summary dismissal fell within the band of reasonable responses.

2. The reasons were adequate. Rule 30(6) of the Employment Tribunal Rules of Procedure does not require a mechanical recital of every required heading. It is sufficient if the reasons, read as a whole, identify the issues and material facts, state the applicable law, and explain its application. The tribunal had done so on unfair dismissal.

3. The claimant’s appeal on the two dismissed victimisation complaints was allowed and remitted to a fresh tribunal. The tribunal had confused the initiation and investigation of disciplinary proceedings with the later decision to impose a sanction. Both may constitute less favourable treatment. It had not clearly determined Ms Marron’s role or the reason for initiating the process.

4. On rehearing, the tribunal must identify the relevant comparator, consider whether the investigatory and disciplinary steps were less favourable treatment, and assess all realistic non-discriminatory explanations. Section 54A of the Race Relations Act 1976 does not govern victimisation. Under the common-law approach, an inadequate explanation may permit, but does not compel, an inference of victimisation. Unreasonableness alone is not enough.

5. The bank’s cross-appeal was allowed. The Bronze Alert allegation was neither pleaded in the ET1 nor included in the agreed list of issues or witness statement as a distinct complaint. Without an amendment, the tribunal had no jurisdiction to uphold it. The victimisation claims other than the Bronze Alert were remitted to a fresh Employment Tribunal.

• Employment Appeal Tribunal: allowed the claimant’s appeal in part by remitting the dismissed victimisation complaints to a fresh tribunal; dismissed her unfair-dismissal appeal; and allowed the bank’s cross-appeal concerning the Bronze Alert allegation.
• Employment Tribunal, London Central: judgment dated 22 September 2010. It dismissed the unfair-dismissal claim and two victimisation claims, but upheld a third victimisation claim concerning the Bronze Alert.